mind of the judge, there remains an unavoidable cause of doubt, and a place for contention.

Seventhly. The deliberations of courts of justice upon every new question are encumbered with additional difficulties, in consequence of the authority' which the judgment of the court possesses, as a precedent to future judicatures which authority appertains not only to the conclusions the court delivers, but to the principles and arguments upon which they are built. The view of this effect makes it necessary for a judge to look beyond the case before him; and, beside the attention he owes to the truth and justice of the cause between the parties, to reflect whether the principles, and maxims, and reasoning, which he adopts and authorizes, can be applied with safety to all cases, which admit of a comparison with the pres ent.The decision of the cause, were the effects of the decision to stop there, might be easy: but the consequence of establishing the principle, which such a decision assumes, may be difficult, though of the utmost importance, to be foreseen and regulated.

a

Finally. After all the certainty and rest that can' be given to points of law, either by the interposition of the legislature, or the authority of precedents, one principal source of disputation, and into which indeed the greater part of legal controversies may be resolved, will remain still, namely, "the competition of opposite analogies." When a point of law has been once adjudged, neither that question, nor any which completely and in all its circumstances corresponds with that, can be brought a second time into dispute: but questions arise, which resemble this only indirectly and in part, in certain views and circumstances, and which may seem to bear an equal or a greater affinity to other adjudged cases ; questions, which can be brought within any affixed rule only by analogy, and which hold a relation by analogy to different rules. It is by the urging of the different analogies that the contention of the Bar is carried on: and it is in the comparison, adjustment, and reconciliation of t them with one another; in the discerning of such direc

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tions, and in the framing of such a determination, as may either save the various rules alleged in the cause, or, if that be impossible, may give up the weaker analogy to the stronger, that the sagacity and wisdom of the court are seen and exercised. Amongst a thousand instances of this, we may cite one of general notoriety in the contest that has lately been agitated concerning literary property. The personal industry, which an author expends, upon the composition of his work, bears so near a resemblance to that, by which every other kind of property is earned, or de served, or acquired; or rather there exists such a correspondency between what is created by the study of a man's mind, and the production of his labour in any other way of applying it, that he seems entitled to the same exclusive, assignable, and perpetual right in both; and that right to the same protection of law. This was the analogy contended for on one side. On the other hand, a book, as to the author's right in it, appears similar to an invention of art, as a machine, an engine, a medicine. And since the law permits these to be copied, or imitated, except where an exclusive use or sale is reserved to the inventor by patent, the same liberty should be allowed in the publication and sale of books. This was the analogy maintained by the advocates of an open trade. And the competition of these opposite analogies constituted the difficulty of the case, as far as the same was argued, or adjudged upon principles of common law. -One example may serve to illustrate our meaning; but whoever takes up a volume of reports, will find most of the arguments it contains capable of the same analysis; although the analogies, it must be confessed, are sometimes so entangled as not to be easily unravelled, or even perceived.

Doubtful and obscure points of law are not, however, nearly so numerous as they are apprehended to be. Out of the multitude of causes, which in the course of each year are brought to trial in the metropolis, or upon the circuits, there are few in which any point is reserved for the judgment of superior Yet these few contain all the doubts, with

courts.

which the law is chargeable: for, as to the rest, the uncertainty, as hath been shewn above, is not in the law, but in the means of human information.

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There are two peculiarities, in the judicial constitution of this country, which do not carry with them that evidence of their propriety, which recommends almost every other part of the system. The first of these is the rule, which requires that juries be unanimous in their verdicts. To expect that twelve men, taken by lot out of a promiscuous multitude, should agree in their opinion upon points confessedly dubious, and upon which oftentimes the wisest judg ments might be held in suspense; or to suppose that any real unanimity, or change of opinion in the dissenting jurors, could be procured by confining them until they all consented to the same verdict; bespeaks more of the conceit of a barbarous age, than of the policy which could dictate such an institution as that of juries. Nevertheless, the effects of this rule are not so detrimental, as the rule itself is unreasonable : in criminal prosecutions it operates considerably in favour of the prisoner; for if a juror find it necessary to surrender to the obstinacy of others, he will much more readily resign his opinion on the side of mercy, than of condemnation; in civil suits it adds weight to the direction of the judge; for when a conference with one another does not seem likely to produce, in the jury, the agreement that is necessary, they will naturally close their disputes by a common submission to the opinion delivered from the bench. However, there seems to be less of the concurrence of separate judgments in the same conclusion; consequently, less assurance that the conclusion is founded in reasons of apparent truth and justice, than if the decision were left to a plurality, or to some certain majority of voices.

The second circumstance in our constitution, which, however it may succeed in practice, does not seem to have been suggested by any intelligible fitness in the

nature of the thing, is the choice that is made of the House of Lords, as a court of appeal from every civil court of judicature in the kingdom; and the last also and highest appeal, to which the subject can resort. There appears to be nothing in the constitution of that assembly; in the education, habits, character, or professions of the members who compose it; in the mode of their appointment, or the right, by which they succeed to their places in it, that should qualify. them for this arduousoffice; except, perhaps, that the elevation of their rank and fortune affords a security against the offer and influence of small bribes. Officers of the army and navy, courtiers, ecclesiastics; young men who have just attained the age of twenty-one, and who have passed their youth in the dissipation and pursuits which commonly accompany the pos session or inheritance of great fortunes; country gentlemen occupied in the management of their estates, or in the care of their domestic concerns and family interests; the greater part of the assembly born to their station, that is, placed in it by chance; most of the rest advanced to the peerage, for services, and from motives utterly unconnected with legal erudition-these men compose the tribunal, to which the constitution intrusts the interpretation of her laws, and the ulti mate decision of every dispute between her subjects These are the men assigned to review judgments of law, pronounced by sages of the profession, who have spent their lives in the study and practice of the jus risprudence of their country. Such is the order which our ancestors have established. The effect only proves the truth of this maxim, "that when a single institution is extremely dissonant from other parts of the system to which it belongs, it will always find some way of reconciling itself to the analogy which governs and pervades the rest." By constantly pla cing in the house of lords some of the most eminent and experienced lawyers in the kingdom; by calling to their aid the advice of the judges, when any abstract question of law awaits their determination; by the almost implicit and undisputed deference, which the uninformed part of the house find it necessary to pay

to the learning of their colleagues, the appeal to the house of lords becomes in fact an appeal to the col lected wisdom of our supreme courts of justice: receiving indeed solemnity, but little perhaps of direc tion, from the presence of the assembly in which it is heard and determined.

These, however, even if real, are minute imperfec tions. A politician, who should sit down to deline ate a plan for the dispensation of public justice, guard ed against all access to influence and corruption, and bringing together the separate advantages of knowle edge and impartiality, would find, when he had done, that he had been transcribing the judicial constitution of England. And it may teach the most discontented amongst us to acquiesce in the govern ment of his country; to reflect, that the. pure, and wise, and equal administration of the laws, forms the first end and blessing of social union and that this blessing is enjoyed by him in a perfection, which he will seek in vain, in any other nation of the world. :

CHAPTER IX.

OF CRIMES AND PUNISHMENTS.

THE proper end of human punishment is, not the satisfaction of justice, but the prevention of crimes, By the satisfaction of justice, I mean the retribution of so much pain for so much guilt; which is the dispensation we expect at the hand of God, and which we are accustomed to consider as the order of things that perfect justice dictates and requires. In what sense, or whether with truth in any sense, justice may be said to demand the punishment of offenders, I do not now inquire; but I assert that this demand is not the motive or occasion of, human punishment. What would it be to the magistrate that offences went altogether unpunished, if the impunity of the offenders were followed by no danger or prejudice to the commonwealth? The fear lest the escape of the